Delhi District Court
Mr. Ajay Chopra vs State on 2 December, 2015
IN THE COURT OF SH AJAY GUPTA: ADDITIONAL SESSION
JUDGE4 (SHAHDARA), KARKARDOOMA COURTS , DELHI
Cr. Revision No. : 22/15
UID NO : 02402R0189152015
In the matter of
Mr. Ajay Chopra,
Director of M/s Drive India Enterprise Solutions Ltd.,
Having its registered office at
Kamla Executive Park,
th
7 Floor, near Vazir Glass
Factory, Off Andheri Kurla Road, Andheri
(East), Mumbai59
Also at
Flat No. 61/32, Tower No. 2,
Wings Garden Tower
Oshiwara, Andheri West, Mumbai ...... Petitioner
Versus
1. State
Through APP
Department of Prosecution
Karkardooma Court,
2. M/s Overseas Mobiles Pvt. Ltd.
175, F.I.E Patparganj, Delhi ....... Respondents
Crl. Revision No. 22/15 Ajay Chopra vs. State Page 1/21
Date of argument :- 19/09/2015
Date of order :- 02/12/2015
Decision :- Disposed of.
JUDGMENT
1. The present revision petition has been filed against the order dated 20.11.2014 passed by Ms. Savitri Ld. CMM, Shahdara, KKD courts Delhi, in the case FIR No.239/10, titled as State vs. Anthony D'Souza. Vide impugned order, Ld. CMM has taken the cognizance of the offence on the closure report filed by the EOW, Madhu Vihar and has summoned the petitioner and other officers of M/s Drive India Enterprises Solutions Ltd (in short DIESL) as accused to face trial for the commission of the offences u/s 406/409/420/467/468/471/472/120B IPC.
2. The brief facts of present case are that the respondent no.
2/Overseas Mobile Pvt. Ltd. (hereinafter referred as complainant) through its director Sh. P.C. Sharma filed a complaint against the petitioner and other officers of DIESL company u/s 406/409/420/467/468/471/120B IPC before Ld. MM with the following allegations: Crl. Revision No. 22/15 Ajay Chopra vs. State Page 2/21
(a) that in the month of July, 2009 (1) Mr. Anoop Agarwal (2) Anthony D' Souza (3) Suprakash Mukhopadhyay (4) Sanjay Jitender Lal Dube (5) Ajay Chopra (6) Barindra Sanyal and (7) Ajay Murlidhar Ponkshe of DIESL approached the complainant for appointment of sole selling agent of ZTE Brand Mobile Handsets throughout India and assured the complainant that they possess all the requisites. Vide agreement Dt.22.07.2009, the DIESL was appointed as their sole agent. Mr.Anthony D'Souza signed the said agreement on behalf of the petitioner.
(b) that complainant company transferred/sold 97,000 handsets of ZTE mobile phones worth Rs.13.81 crores to the DIESL. As per clause 2.15 of the agreement, the DIESL was bound to return the unsold handsets to the complainant after 90 days. After few months the complainant came to know that the DIESL did not have the requisite expertise to run the said business profitably and due to which 19,335 mobile phones worth Rs.4.57 Cr. were lying unsold with the DIESL. The accused neither made the payment of the unsold handsets nor returned the same after 90 days despite reminders. Thus, it is stated that DIESL induced the complainant company to appoint them as their sole agent under a conspiracy and after they were appointed as sole agent they have cheated them and committed criminal breach of trust by not returning the remaining stock of the mobile phones.
(c) that accused has also committed forgery in the arbitration clause of the agreement which is mentioned in the para no.5.1. As per agreement the arbitrator was to be appointed jointly but in the copy of the agreement which accused persons handed over to complainant on 05.04.2010, the accused persons have struck off the word jointly.
Crl. Revision No. 22/15 Ajay Chopra vs. State Page 3/21(d) that petitioner/accused persons have forged the statement of accounts. The accused has sent four account statements pertaining to the period 31.03.2010 having different balances mentioned in all of them. There was credit amount of Rs.3.46 Cr. in the statement sent by the DIESL to the complainant by email on dt. 19.04.2010. Thereafter, accused sent two more statements on 26.04.2010. In the first statement the credit amount of Rs. 15.27 Lacs was shown and in the subsequent statement debit amount of Rs.4.15 Cr. was mentioned. It is stated that DIESL has prepared these statements to extract amount from the complainant.
(e) that the complainant company had reconciled the books of accounts with the DIESL for the period ending 28.02.2010 and 10.03.2010 which was containing the issues regarding the claim of the complainant and these statements were handed over to Mr. Prashant Jatia, the executive of DIESL for counter sign but accused is denying the factum of reconciliation with the ulterior motive.
(f) that complainant had collected nine cheques (Standard Chartered Bank, Preet Vihar drawn in favour of the DIESL) from M/s Indian Overseas Co.Pvt. Ltd (IOC) against purchase of Mobile phones and complainant handed over these cheques to the petitioner/accused persons. IOC returned some of the defective mobile phones to the complainant and accused persons issued a statement showing NIL balance regarding IOC and promised for not presenting the said cheques but despite that DIESL is threatening to present these cheques which amounts to criminal breach of trust.
(g) that another agreement was executed between the complainant and petitioner/accused regarding direct import of material. The complainant received the said Crl. Revision No. 22/15 Ajay Chopra vs. State Page 4/21 agreement through email on 13.08.2010 and after signing the same they handed it over to Mr. Ashish Gupta for counter sign alongwith the an undated Cheque no. 845304, drawn on OBC bank, Laxmi Nagar. The said transaction was completed and all the dues in regard to the import and LC were paid, however, the accused is not returning the said cheque and threatening to encash the said cheque which also amounts to criminal breach of trust.
(h) On the basis of the abovesaid allegations the complainant prayed for order for registration of the FIR against the petitioner and all the aforesaid officers of the petitioner.
3. The application of the complainant u/s 156(3) of Crl.P.C. was allowed and on the direction of Ld. MM, issued vide order dt.
07.07.2010, the FIR no. 239/10 u/s 406/409/420/467/468/471/472/120B IPC was registered at PS, Madhu Vihar, Delhi.
4. Initially, the investigation was carried out by the local police but later on the investigation was transferred to Economic Offence Wing (EOW). EOW Cell did not find substance in the allegations of the complainant and a closure report was filed before the court of Ld. CMM, Shahdara and IO submitted the following explanation for his conclusion: Crl. Revision No. 22/15 Ajay Chopra vs. State Page 5/21
(a) REGARDING OPINION OF CA ABOUT THE STATEMENT OF ACCOUNTS: It is stated that the claim of the complainant that right of DIESEL to debit the account of complainant is seized if unsold stock is not returned after ninety days is not supported by any document. As per DIESEL's auditor's report, the complainant owe more than Rs.10 crores to DIESEL. As per DIESEL, they did not return the goods as complainant was to pay them. CA had given his earlier opinion on the basis of the documents provided to him. In the letter Dt.08.04.2010, the DIESEL had mentioned the reasons for non return of the goods and CA stated that the said letter was not provided to him. Thus, it is stated that the earlier report of CA was given without considering the letter dt. 08.04.2010.
(b) REGARDING THE CUTTING OF WORD JOINTLY FROM THE ARBITRATION AGREEMENT:Regarding cutting of the word jointly from the arbitration agreement it is stated that complainant had filed a petition before Hon'ble Delhi High Court for appointment of arbitrator before registration of the present case and later on Mr. Milind Shahane was appointed as arbitrator. The agreement wherein word 'JOINTLY' was cut was in the possession of complainant, thus, no advantage of cutting of the word 'JOINTLY' was taken by the petitioner. Moreover, the cutting of the said word has not been supported in FSL report.
(c) REGARDING AUTHENTICITY IN THE ACCOUNT STATEMENTS OF DIESEL: It is stated that during investigation the CA had stated that statement regarding the credit balance of Rs.2.78 Crores balance in favour of the complainant in the account books of the DIESEL is true but this opinion was not based on any document. In the list of creditor mentioned in the DIESL's auditor's report, sum of Rs.6.71 Crores of DIESEL have been shown to be due against complainant and when CA was shown the list of creditors, he said that his junior might have ignored this Crl. Revision No. 22/15 Ajay Chopra vs. State Page 6/21 entry. Thus, the no supported evidence regarding the claim that DIESEL owe Rs.2.78 Crores to complainant was found.
(d) REGARDING MANIPULATION IN THE STATEMENT OF ACCOUNTS: It is stated that four different account statements of different time mentions the different balance as the business was not concluded as on 31.03.2010, therefore various entries were made in the accounts of next year. It is stated that audit takes 23 months after the end of financial year. The statement of account was subject to change as transactions between the parties were going on day to day basis and it was subject to reconciliation. The IO scrutinized all the four statement of accounts to see the reasons of difference in balance. The conclusion of IO is reads as under: "But this opinion also does not seem to be supported with available documents including DIESL's auditor report. Thus, CA was contacted and he was shown DIESL's Auditor Report having list of creditors as on 31.03.11 which finds mentioned an amount of Rs. 6.71 Crores of DIESL in favour of OMPL. Thus, the CA informed that this booklet was scrutinized by his junior and he might have ignored this entry. Presently that junior was stated to have left the services at present. Further, scrutiny of four statements dated 10.04.10, 13.04.10, 19.04.10 and 26.04.10 revealed as under:-
(i) 10.04.2010:- As per this statement, Rs. 1.75 + .80 = Rs. 2.25 Crores is to be paid by DIESL.
(ii) 13.04.10:- As per this statement, Rs. 2.37 + .80 = Rs. 3.17 crores is to be paid by DIESL (this statement finds mentioned OMPL margin, SAD refund etc to the tune of Rs. 19.71+8.54= Rs.28.26lacs.
(iii) 19.04.10:- As per this statement Rs. 2.65 + .80 = Rs. 3.45 crores is to be paid by DIESL (this statement finds exchange difference on LC).
(iv) 26.04.10:- As per this statement, OMPL has to pay Rs. 2.44 crores to DIESL.Crl. Revision No. 22/15 Ajay Chopra vs. State Page 7/21
Explanation given by the alleged for above difference i.e. Rs. 5.90 crores is as under:-
(1) Debit on account of unsold stock as per clause no. 2.15-Rs.4.15 crores. (2) Retention amount as per clause no. 2.14-Rs. 59.50 lacs.
(3) Debit for outstanding debtors as per clause no. 2.11-Rs. 19.97 lacs.
(4) Wrong balance considered by OMPL-Rs.80.43 lacs (5) Debit for exchange difference towards unsold inventory-Rs. 8.13 lacs.
(6) Debit for SAD refund towards unsold inventory-Rs. 3.93 crores.
(7) Debit for OMPL margin towards unsold inventory- Rs. 9.26 lacs.
(8) Credit for SAD refund towards unsold inventory-Rs. 6.06 lacs.
(9) Credit for PO difference-Rs 2700/- (10) Debit for Price difference-Rs. 40,129/-
Admittedly, DIESL's auditor has shown a figure of Rs. 2.78 crores in favour of complainant for the period 31.03.10. It is pertinent to mention that the business was not concluded between the parties by that time and various entries were entered in the next year wherein debit in favour of OMPL has been shown by DIESL's auditor. Further, audit takes 2 to 3 months for finalization after ending of a financial year. As transactions between the parties were going on day to day basis and as such the statements of accounts were subject to change, unless reconcile by the parties. in view of above, this whole transactions is matter of reconciliation subject to various agreements executed between the parties."
(e) REGARDING CHEQUES ISSUED BY COMPLAINANT TO THE DIESEL: It is stated that complainant had issued the said nine cheque as guarantee and as per DIESEL the liability of complainant is continue even after termination of agreement. The complainant had stopped the Crl. Revision No. 22/15 Ajay Chopra vs. State Page 8/21 payment of said cheque prior to the registration of the present case and in this regard several legal notices were exchanged between the parties, thus, these cheques are subject matter of civil dispute and no police action is required.
(f) REGARDING FORGERY IN THE RECONCILIATION STATEMENTS: As per complainant two reconciliation statements i.e. 28.02.2010 and 10.03.2010 were given by DIESEL staff to Mr. B.K. Agarwal vide letter dt 05.07.2010 upon which signature of complainant have been forged by DIESEL. However, as per DIESL, the complainant had given these statements to DIESL after signing and stamping. The statement was sent to FSL, however, It could not be established who done this forgery.
On the basis of aforesaid investigation, it was stated that the allegations of the complainant could not be substantiated and it was found to be a business dispute due to breach of agreements executed between the parties.
5. Ld. CMM did not accept the closure report and believed the case of the complainant as correct and took cognizance of the offence and summoned the petitioner and other accused persons mainly on the ground that during investigation the CA had given his written report saying that the statement of DIESL showing the credit amount of complainant to the tune of Rs. 2.71 Crores was true and that accused made false entries in their accounts to Crl. Revision No. 22/15 Ajay Chopra vs. State Page 9/21 show debit balance of the complainant and Ld. CMM did not accept the explanation of the IO about the subsequent opinion of the CA stated to be orally given in favour of the accused persons.
6. The petitioner has assailed the impugned order mainly on the following grounds:
(a) That the petitioner is a Director of DIESL and is not involved in day to day affairs of DIESL in any manner.
(b) That summoning order has been passed enmasse without application of judicial mind. Ld. CMM has taken cognizance of the offences u/s 406/420/467/468/471/472/120B IPC but did not mention as to which offence has been committed by which accused.
(c) That order taking cognizance and summoning ought to be a speaking order with detailed reasoning for summoning as a closure report was filed after thorough investigation but in the present case a non speaking order has been passed.
(d) That as per section 190, 203 and 204(b) Cr.P.C. the Magistrate exercise the discretionary power and while exercising the discretionary power the Magistrate has to give reasons and pass a speaking order.
(e) That ld. CMM ought to have ordered for further investigation if she differed with the opinion of investigating agency instead of summoning the accused.
Crl. Revision No. 22/15 Ajay Chopra vs. State Page 10/21(f) That the complainant concealed the material facts in the application u/s 156(3) Crl.P.C. regarding filing of petition before Hon'ble High Court for appointment of arbitrator and thus, in view of the judgment of Hon'ble High Court titled as Joginder Singh Vs Ramanand 2011(1) JCC 75 the order for registration for FIR is nonest.
(g) That ld. trial court has also summoned the accused u/s 467/468/471/472, however it is not mentioned in the impugned order as to which document was treated as valuable security as account statement can never be treated as valuable security as it doesn't create a valuable right in a person. Offence of falsification of accounts offence is mentioned u/s 477A IPC which is a noncognizable offence for which FIR cannot be registered.
(h) That accused has also been summoned u/s 472 IPC (applies for making or possessing the counterfeit seal etc), however, there is neither such allegation in the complaint/FIR nor any finding in the closure report.
(i) That as per settled 406/409 and 420 IPC cannot subsist in the same transaction. It has been held by Hon'ble Punjab & Haryana High Court in the case titled as Jalpa Parshad Aggarwal Vs. State of Haryana & ors. 1987 (2) RCR 427 that offence u/s 406 IPC is an antithesis of the offence u/s 420 IPC.
(j) That the cognizance cannot be taken on the basis of the CA report submitted at the time of filing reply to the bail application as in view of the settled law, a person can be given a clean chit in later stage after investigation.
Crl. Revision No. 22/15 Ajay Chopra vs. State Page 11/21(k) That Ld. CMM observed that there is no proof of communication with the CA. The CA also stands in the category of witness and statement recorded u/s 161 Crl.P.C. is not signed. Moreover the CA is not an expert within the definition of section 45 of Evidence Act.
(l) That ld. CMM has observed that CFSL report regarding forgery in reconciliation of account is against the accused persons but as per CFSL report there is nothing against accused persons.
(m)That the present case is hit by the bar of jurisdiction. Hon'ble Delhi High Court while rejecting the petitioner u/s 11 of Arbitration and Conciliation Act has held that Mumbai court has the jurisdiction.
(n) That ld. trial court observed the offence of cheating due to difference in various statement of accounts. The difference is due to the adjustment made in the end of the financial year which is a common practice. The complainant has not stated that any entry has been changed.
(o) That DIESEL had made payment of unsold stock to the complainant, thus, DIESEL had lien over the unsold stock till the time payment is made which is also clear from the letter dt. 08.04.10 and as per agreement DIESEL was entitled to sell the unsold stock and it sold the same and DIESEL incurred a loss of Rs.2.76 Crores which DIESEL is entitled to recover from the complainant.
(p) That it is held in the cases reported as Pepsi Foods Ltd. Vs. Special Judicial Magistrate 1998 SCC(Cri.) Crl. Revision No. 22/15 Ajay Chopra vs. State Page 12/21 1400, GHCL Employees Stock Option Trust Vs. India Infoline Ltd. (2013)4 SCC 505, M.P. Sahni Vs. State 2013(3)JCC 1816 and G.Sagar Suri Vs. State of U.P. 2000(2) SCC 636 that order of summoning must reflect that Ld. Magistrate has applied his mind before summoning the accused as before summoning the magistrate has to properly appreciate the material available on record and arrive at the conclusion that alleged offence has been prima facie committed.
7. I have heard the submissions of Ld. Counsel for petitioner and Ld. Addl.P.P. as well as Ld. counsel for complainant and gone through the record of the case as well as reply filed by complainant. In support of his contention Ld. counsel for the complainant has cited the following judgments:
1. Criminal Appeal No. 1109 of 2011 titled as Sushil Puri versus C.B.I & Anr.
2. Criminal Appeal No. 612 of 2012 titled as Bhusan Kumar & Anr versus State (NCT of Delhi) & Anr.
3. Criminal Appeal No. 1297 of 2004 titled as Vijayander Kumar & Ors. Versus State of Ratasthan & Anr.
8. The allegations raised by the complainant can be summarized as under: Crl. Revision No. 22/15 Ajay Chopra vs. State Page 13/21
(a) The Petitioner/ accused persons cheated the complainant by falsely assuring that they possess all requisites in regard to the business of mobile phone which they did not have, thus, the agreement was on the false representation.
(b) The goods i.e. unsold stock of mobile phone was not returned after agreed period of 90 days thus, they have committed criminal breach of trust.
(c) That the accused persons in the statement for 31/03/2010 which they sent on 19/04/2010 had shown the credit balance of complainant Rs.3.46 Cr but the accused sent another sent another statement of the same period on dt.26.10.10 in which they committed forgery by converting the credit balance into the Debit balance of 4.15 Cr..
(d) That accused persons struck off the word 'JOINTLY' from the arbitration agreement to have their sole arbitrator.
(e) That the nine cheque issued by M/s Indian Overseas Co. Pvt. Ltd. can not to be presented by the accused for encashment as they had given NIL statement of IOC but accused did not return these cheques and threatening to present the same on the basis of bogus documents prepared by accused persons, thus, they committed criminal breach of trust.
(f) Lastly, complainant had issued one another cheques no. 845304 drawn on OBC Laxmi Nagar Delhi regarding which all dues were paid by the complainant yet the accused are threatening to present the said Crl. Revision No. 22/15 Ajay Chopra vs. State Page 14/21 cheque which also amounts to criminal breach of trust.
9. After investigation a detailed final report was filed by the EOW on the point of all the allegations and as per final report none of the allegations could be substantiated during investigation and nothing incrimination was found against the accused and it was found to be a business dispute which arose due to breach of agreement.
10. Before making further discussions, the law related to the summoning of accused is required to be noted. It is held by Hon'ble Supreme Court in the case of Pepsi Foods Ltd. & Anr versus Special Judical Magistrate and Ors (1998) 5 SCC 749 that summoning of an accused in a criminal is a serious matter and the summoning order should not be passed mechanically. It is held by Hon'ble Supreme Court in the case of M/S GHCL Employees Stock Option Trust vs. M/S India Infoline Ltd 2013 (4) SCC 505 that while issuing summons Magistrate has to record his satisfaction against the directors of a company and role played by them. The relevant para of this judgment reads as under: Crl. Revision No. 22/15 Ajay Chopra vs. State Page 15/21
19.In the order issuing summons, the learned Magistrate has not recorded his satisfaction about the prima facie case as against respondent Nos. 2 to 7 and the role played by them in the capacity of Managing Director, Company Secretary or Directors which is sine qua non for initiating criminal action against them. Recently, in the case of M/s. Thermax Ltd. & Ors. v. K.M. Johny & Ors., 2011 (11) SCALE 128, & ors. while dealing with a similar case, this Court held as under :-
"20. Though Respondent No.1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with appellant-Company by initiating the criminal prosecution, it is pointed out that appellant Nos. 2 to 8 are the Ex-
Chairperson, Ex-Directors and Senior
Managerial Personnel of appellant
No.1 - Company, who do not have any personal role in the allegations and claims of Respondent No. 1. There is also no specific allegation with regard to their role
21. Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 Indian Penal Code, it is to be noted that the concept of 'vicarious liability' is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant-Company."
11. It has been held by Hon'ble High court in the case reported as 2012 (3) AD (Delhi) 733 titled as Yahoo India Pvt. Ltd vs. State (Delhi) that the summoning of the accused in the criminal case is a serious matter and the criminal law can not be set into motion Crl. Revision No. 22/15 Ajay Chopra vs. State Page 16/21 as a matter of course. It is held by Hon'ble High court that the order of summoning must reflect that ld. MM has applied his mind to the facts of the case and law applicable in that case. The relevant para of this judgment reads as under: "28. Law is settled in case of Pepsi Foods Ltd. & Ors. v. Special Judicial Magistrate and Others AIR 1998 Supreme Court 128 wherein it is held that summoning of an accused in a criminal case is a serious matter.
Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary as well in support thereof and would that be sufficient for the complainant to succeed in brining charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of accused."
12. Thus, in view of the settled law the Ld. Magistrate has to apply his judicial mind to the material placed on record and the order of summoning should be a speaking order discussing all the Crl. Revision No. 22/15 Ajay Chopra vs. State Page 17/21 incriminating material available on record. Thus, in view of the settled law Ld. Magistrate has to specify in his order the material on basis of which a summoning order is being passed.
13. Ld. CMM did not accept the final report and took cognizance of the offence. After perusing the material on record and the settled law, this court is of the opinion that the order of Ld. CMM summoning the accused persons is not sustainable in the eyes of law and liable to be set aside for the following reasons:
(a) The investigating agency had filed the final report and submitted that none of the allegations could be substantiated during the investigation. Thus, as per final report no incriminating material was available on record. Ld. CMM took cognizance of all the offence mentioned in the FIR mainly on the basis that during investigation the CA after considering the accounts of accused company has given a report that the credit balance of complainant was Rs.2,7819579/ and Ld. trial court did not believe the version of the IO that CA changed his earlier opinion by oral communication. Thus, Ld. CMM observed that IO has stated about the oral communication of his own and discarded the final report and assumed the first CA report to be true. Ld. CMM also observed that CFSL report regarding the forgery in reconciliation is also against the accused persons, thus, took cognizance and summoned all the accused persons named in the original complainat.
Crl. Revision No. 22/15 Ajay Chopra vs. State Page 18/21(b) The allegations in present case are of forgery in the account statement and thus, there should be sufficient material to substantiate the allegations of forgery. Ld. CMM did not make any observation in her order about the material which indicates about the forgery in the account statements. The Ld. CMM believed the first CA report to be true and disbelieved the later opinion as it was not in writing. The cognizance of an offence cannot be taken on the basis of assumption and presumption and if Ld. CMM was of the opinion that IO has not conducted proper investigation in regard to a particular allegation. She was fully empowered to direct for further investigation on that aspect but Ld. CMM ought not to have taken cognizance without there being sufficient material.
(c) The complainant alleged that accused persons committed the offences of cheating as well as criminal breach of trust. It is well settled law that the accused can be summoned either for cheating or criminal breach of trust and he cannot be summoned for both the offences simultaneously regarding same cause of action. In this regard this court is supported by the case law reported as 1987 (2) RCR 427 titled as Jalpa Parshad Aggarwal Vs. State of Haryana & ors.
(d) The complainant had alleged that offences u/s 406/409/420/467/468/471/120B IPC have been committed, however, after investigation a closure report was filed which was rejected by Ld. CMM and cognizance of all the said offences has been taken. Ld. CMM has not mentioned the reason as to how, she Crl. Revision No. 22/15 Ajay Chopra vs. State Page 19/21 arrived at the conclusion that the said offences have been committed. There is no discussion at all about the same. This is a case where closure report has been filed then it is necessary on the part of the court taking cognizance to specify the material on the basis of which court formed its opinion about the commission of offences.
(e) It is well settled law that no person can be summoned for an offence merely being director or employee of the company and it is required to be specified that as to which offence has been committed by which of the accused and in what manner. The order of Ld. CMM is totally silent on this aspect. Their roles have not been specified. In this regard this court is supported by the case law reported as (2013)4 SCC 505 titled as GHCL Employees Stock Option Trust Vs. India Infoline Ltd.
(f) The complaint and FIR is regarding the offences u/s 406/409/420/467/468/471/120B IPC, however, besides the said offences, Ld. CMM has summoned the accused for an additional offence u/s 472 IPC without specifying anything. The said offence was not complained of, thus, before summoning the accused under the additional offence Ld. CMM ought to have discussed the reason for the same.
(g) The present is not the case where the evidence was led before ld. CMM and court has proceeded under section 204 Crl.P.C. to summon the accused after considering the prima facie evidence. This is the case where the FIR was registered and matter was investigated and a Crl. Revision No. 22/15 Ajay Chopra vs. State Page 20/21 closure report was filed. Thus, according to the investigating agency there is no evidence to charge sheet the accused, however, the court proceeded to summon the accused, thus, Ld. CMM ought to have specified the material on the basis of which court has proceeded against the accused and summoned the accused.
14.Keeping in view of the aforesaid discussions and the settled law, the order passed by ld. CMM is not sustainable in the eyes of law, thus, the same is hereby set aside and matter is remanded back.
Ld. CMM is directed to pass a speaking order on the point of summoning thereby discussing the incriminating material available on record and the offences which have been committed and if any offence has been committed then by whom and in what manner. It is most respectfully observed that the case laws cited by Ld. counsel for complainant are not applicable to the present case.
15.TCR be sent back alongwith copy of this order for information and compliance.
16. File be consigned to record room.
(Ajay Gupta) ASJ-04/Shahdara/KKD/ Courts/Delhi. (Announced in Open court on 02.12.2015) Crl. Revision No. 22/15 Ajay Chopra vs. State Page 21/21